concluding that congressionally-mandated requirement establishing this Court's judicial review as limited to cases in which Notice of Disagreement has been filed under 38 U.S.C. § 7105 , on or after November 18, 1988, was for purpose of protecting Court from flood of cases and concluding that to allow that "date to be used by the BVA Chairman as a shield against judicial review would be to give that date meaning beyond that intended in enacting judicial review"
How later courts described this case
- concluding that congressionally-mandated requirement establishing this Court's judicial review as limited to cases in which Notice of Disagreement has been filed under 38 U.S.C. § 7105 , on or after November 18, 1988, was for purpose of protecting Court from flood of cases and concluding that to allow that "date to be used by the BVA Chairman as a shield against judicial review would be to give that date meaning beyond that intended in enacting judicial review"
- holding that an appellant cannot be deprived of his or her right to appeal to this Court as a result of action by the BVA to correct an alleged error in the record
- jurisdiction-conferring NOD “gave the appellant a right to a future Court decision on that claim once a final, adverse Board decision was issued ... [and] appellant cannot be deprived of his or her right to appeal to this Court”
- BVA Chairman may not “defeat the right to judicial review at a critical juncture in a ease by ordering reconsideration of a prior [Board] decision which is beyond the reach of that right [to judicial review]”.
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
I concur in part II.A.; however, I cannot agree with part II.B. to the extent that the majority predicates its remand on a five percent probability that the appellant’s present neurological disorder is related to service. Evidence to this degree means that there is a 95% probability that there is no relationship between the appellant’s present disability and service. Simply put, there is no legal basis upon which a five percent possibility can constitute the predicate evidentiary base that would permit an appellant to prevail. See Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1991) (“[A] veteran need only demonstrate *555 that there is an ‘approximate balance of positive and negative evidence.’ ... In other words, ... the preponderance of the evidence must be against the claim for benefits to be denied.... [Thus,] when a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that [the] veteran prevails.”); see also 38 U.S.C. § 5107 (b). As the claim must fail on this basis, any failure by the BVA to deal adequately with it constitutes harmless error. See 38 U.S.C. § 7261 (b); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Kehoskie v. Derwinski 2 Vet.App. 31, 34 (1991).
On the other hand, I would remand based on another part of Dr. Calhoun’s statement quoted by the majority. In sum, Dr. Calhoun indicated that the appellant’s gunshot wound and the accompanying concussion with loss of consciousness made it likely that the appellant’s present condition was caused by these events. R. at 255. The BVA dismissed Dr. Calhoun’s statement partly on the basis that there was no loss of consciousness because service medical records (SMRs) did not so indicate. While the SMRs are silent as to loss of consciousness, the appellant clearly testified that during the event in which he was wounded he did lose consciousness (“And at that time, I came to[ ] with dirt and everything on top of me_”) R. at 122-23. As the majority also correctly recognizes, under 38 U.S.C. § 1154 (b), the appellant’s testimony as to his loss of consciousness during combat, even in the absence of official records, must be accepted by the Secretary as long as such loss of consciousness was consistent with the circumstances, conditions, or hardships of such combat. See Caluza v. Brown, 7 Vet.App. 498, 507 (1995). Thus, the BVA has failed to address Dr. Calhoun’s statement adequately and I would remand on this basis.